By Jake Burg. This article originally appeared in the Summer 2014 issue of The Trial Lawyer magazine.

Support for medical marijuana in Florida is overwhelming in all age groups including older voters.

The battle over medical marijuana will culminate in Florida this November with Amendment 2. Support for medical marijuana in Florida is overwhelming, but a Republican effort to confuse voters is a looming danger.

One way or another medical marijuana will be legal in Florida, but the extent of medical marijuana legalization remains to be determined. Amendment 2 would allow medical marijuana to treat an array of medical conditions. The ballot measure essentially asks voters if medical marijuana should be allowed “for individuals with debilitating disease as determined by a licensed Florida physician.”

Strongly in Favor

In order to pass, 60% of Florida voters must approve of the measure. A recent Quinnipiac University survey shows overwhelming support for medical marijuana with 88% of Florida voters stating they are in favor of it.

In spite of overwhelming support for medical marijuana, Florida Republicans have largely opposed Amendment 2 arguing that it is too broad and allows treatment for too many medical conditions. Republican Florida Attorney General Pam Bondi tried to block Amendment 2 from reaching the November ballot by petitioning the Florida Supreme Court and asserting that the ballot measure would confuse voters and was not sufficiently clear as required by Florida law.

The Florida Supreme Court upheld the measure finding that the ballot summary “satisfy[s] the legal requirement that voters be given ‘fair notice’ as to the scope of the proposed amendment and further stated that the language is “complimentary and explanatory, not misleading.” While Republican efforts to keep Amendment 2 off the ballot have failed, the Florida Legislature’s recent passage of the “Charlotte’s Web Law opens the door for Republicans to attempt to defeat Amendment 2 by confusing voters about the benefits it offers.

The Charlotte’s Web Law

Gov. Rick Scott signed a law on June 16 that legalizes the use of a noneuphoric strain of marijuana. Known as the Charlotte’s Web Law, the measure was sponsored and supported by numerous Republicans in the Florida Legislature. The law allows for the use of a low THC strain of marijuana called Charlotte’s Web, which has been shown to be helpful in treating seizures. The law limits the use of Charlotte’s Web marijuana to patients suffering from limited medical conditions such as cancer and chronic seizures and prohibits patients from smoking marijuana.

While United for Care, the committee that is sponsoring Amendment 2, indicates that the Charlotte’s Web Law is a step in the right direction, they emphasize that the law does not go far enough in allowing medical marijuana to treat serious medical conditions where patients could realize a benefit from treatment.

An important question that needs to be asked about the Charlotte’s Web Law is: why was it supported by Florida Republicans who have largely voiced opposition to Amendment 2? The answer is likely twofold.

Smoke and Mirrors

First, the Charlotte’s Web Law provides an opportunity for Republicans to claim they are in support of medical marijuana. Republicans have recognized that there is widespread support for medical marijuana across Florida and they have to get on board or risk alienating a large part of their constituency base.

As indicated in a recent Quinnipiac University survey, support for medical marijuana in Florida is overwhelming in all age groups including older voters. The latest survey indicates that 88% of voters between the ages of 50–64 and 84% of voters ages 65 and up support medical marijuana. Similarly, support is staggering in younger voters with 92% of voters between the ages of 18–29 in support of medical marijuana.

Ultimately, Republicans have likely sponsored and supported the Charlotte’s Web Law because it allows them to voice their support for medical marijuana while taking a smoke and mirrors approach. With the passage of the Charlotte’s Web Law, Florida Republicans can claim that they are in support of medical marijuana and have been influential in taking efforts to legalize it. While this message is true to an extent, it is also misleading when one recognizes that the Charlotte’s Web Law only legalizes one type of marijuana to treat a very limited range of medical conditions.

Confusing Voters

If too many unnecessary and burdensome regulations pile up on medical marijuana dispensaries, competition will be squeezed out leaving only those with extensive money and capital in the marketplace.

Second, Republicans have likely supported the Charlotte’s Web Law because it presents an opportunity for them to attempt to defeat Amendment 2 by confusing voters about the benefits Amendment 2 offers. As election season moves closer, Republicans may launch a media campaign to blur the distinction between Amendment 2 and the Charlotte’s Web Law in order to lead voters down the misguided path that there is no need to support Amendment 2 because it adds little to Florida’s medical marijuana framework. This is not true at all.

The Charlotte’s Web Law only legalizes one strand of medical marijuana and the patients that can benefit from it are limited. While the Charlotte’s Web Law may help patients dealing with chronic seizures, it offers little help for patients with medical conditions that cause serious pain and discomfort.

Amendment 2 on the other hand, would allow medical marijuana to treat patients with an array of serious medical conditions including: cancer, Crohn’s disease, epilepsy, hepatitis C, AIDS, glaucoma, among other conditions. The distinction between the Charlotte’s Web Law and Amendment 2 is important and it is vital that Florida voters have a clear understanding of the medical marijuana benefits that Amendment 2 offers, which the Charlotte’s Web Law does not. If Amendment 2 passes in November medical marijuana will not only be available to help patients with chronic seizures, but will also be available to help patients with an array of serious medical conditions.

Unreasonable Restraint on Competition

Another concern with the Charlotte’s Web Law revolves around the unnecessary and unreasonable restraints on competition that it imposes. While it is important that Florida have adequate regulations in place to insure that medical marijuana is safely and effectively cultivated and distributed, unreasonable and burdensome regulations should raise public concern.

If too many unnecessary and burdensome regulations pile up on medical marijuana dispensaries, competition will be squeezed out leaving only those with extensive money and capital in the marketplace. Such a situation is particularly troubling in the medical marijuana industry where well-founded concerns are everywhere about Big Tobacco’s plans to seize a large share of the marketplace, especially if marijuana becomes legal at the federal level.

Ultimately, the Charlotte’s Web Law has several unnecessary restrictions on competition, which should alarm Florida residents. The Law allows no more than five medical marijuana dispensaries in the state and requires them to:

Post a $5 million performance bond

Have a certificate to cultivate 400,000 plants

Have operated a registered nursery in Florida for at least 30 continuous years.

Already, many Florida nurseries interested in the medical marijuana industry have been shut out by the 30-year operation requirement. The Florida Department of Agriculture and Consumer Services initially listed only 21 nurseries in the state that meet the criteria set forth in the Charlotte’s Web Law. There is some speculation that these eligible nurseries may look to pair with dispensaries in other states, like California, which have more experience in the medical marijuana business.

Arbitrary and Unfair

Some of the Florida nurseries that have been shut out of the medical marijuana industry have spoken out against the 30-year operation requirement calling it “arbitrary and unfair.” While those in support of the 30-year requirement may argue it is necessary to insure nurseries that receive a medical marijuana license are experienced and reliable, such an argument is unpersuasive given that all Florida nurseries will be new to the business of growing medical marijuana.

Thus, all nurseries, regardless of how long they have been in operation, will need to gather the resources and guidance necessary to grow medical marijuana. Furthermore, by restraining competition and only allowing five medical marijuana nurseries in the state, the Charlotte’s Web Law may make it difficult for qualifying patients to receive the treatment they need.

This unreasonable and unnecessary restraint on competition should be subject to significant scrutiny as medical marijuana advances in Florida. While the regulatory framework in Florida will remain unclear until voters decide on Amendment 2 in November, the unreasonable restrictions in the Charlotte’s Web Law raises concerns about patient access to treatment and big business control over the medical marijuana marketplace. Ultimately, as Florida moves forward with medical marijuana, the state would be wise to look at regulations in other states, like Colorado, which has successfully brought medical marijuana to the marketplace.

The Future of Medical Marijuana in the South

Although 21 states and the District of Columbia have legalized medical marijuana the Southern states have avoided the fervent state movement. This November, Florida has an opportunity to become the first Southern state to legalize medical marijuana. While Amendment 2 seems to have strong support among Florida voters, the Charlotte’s Web Law presents a looming danger of upcoming Republican efforts to de-rail the Amendment and confuse voters. With the recent passage of the Charlotte’s Web Law, Florida Republicans will tell voters that medical marijuana is now legal. Ultimately, it will be up to Florida voters to decide what legalized medical marijuana means to them when they cast their vote on Amendment 2 in November. The outcome is sure to have an important impact on the future of medical marijuana in Florida and may have a profound impact on the course of medical marijuana for the rest of the Southern states.

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